Page:Hachette Book Group v. Internet Archive (2023).pdf/30

 Section 109(a) “says nothing about the rights holder’s control under § 106(1) over of a copy or phonorecord.”, 910 F.3d at 656. Although Section 109 entitles IA and its Partner Libraries to resell or lend their lawfully acquired print copies of the Works in Suit, “unauthorized reproduction,” which is at the heart of IA’s online library, “is not protected” by § 109(a). at 659.

Acknowledging this, IA refashions a first sale argument within its fair use analysis. IA argues that although “Section 109 does not expressly encompass the reproduction right, neither does it abrogate the common-law principle favoring the ability of the owner of a copy to freely give, sell, or lend it.” Def.’s Memo. at 19–20. But IA points to no case authorizing the first recipient of a book to reproduce the entire book without permission, as IA did to the Works in Suit. IA cites only, 105 F. 772 (7th Cir. 1901), for the proposition that the “common-law doctrine of exhaustion can encompass reproduction of copyrighted material.” Def.’s Memo. at 21. That century-old case merely held that the owner of a schoolbook could reproduce new copies of the book’s cover, because the right of ownership “includes the right to maintain the book as nearly as possible in its original condition, so far, at least, as the cover and binding of the book is concerned.” 105